398
9 International law and
administrative decisions
Administrative decision makers of all k inds may nd themselves in-
volved in matters concerning Can ada’s treaty commitments or other
aspects of internationa l law. Specic reception rules applicable to ad-
ministrative deci sion making have not yet developed in Canadian law
and may not be necessary. However, the application to administ rative
decision making of suc h established doctrines as judicial notice of
international law, the implementation requirement, and t he presump-
tion of conformity presents partic ular problems.
In Canada (Minister of Citizenship and Immigration) v Vavilov, the
Supreme Court of Canada undertook a thoroughgoing renovation of
its administrative l aw jurisprudence, seeking to “chart a new course
forward for determining the standard of review th at applies when a
court reviews the mer its of an administrative decision” and to “provide
additional guid ance for reviewing courts to follow when conducting
reasonableness re view.”1 e decision under review in Vavilov was chal-
lenged in signicant part for the decision maker’s neglect of relevant
international legal considerations in her interpretation of the statu-
tory regime she was ch arged with applying. e Vavilov decision is both
an illustration of how intern ational law can in form administ rative de-
cisions and guida nce as to how international law may be used to c hal-
lenge those decisions on judicial re view.
SCC [Vavi lov] at par a .
• International law a nd administrative decisions
399
9.1 International law as a legal constraint in
administrative decision making
In Vavilov, the Supreme Court of Canada identied international law
as a potential legal constra int on administrative decision makers. One
sort of fundamental aw in an administ rative decision, Vavilov ex-
plains, is “when a decision is in some respect untenable in light of the
relevant factual a nd legal constraints that bea r on it.” After explain-
ing that “both statutory and common law wil l impose constraints on
how and what an administ rative decision-maker ca n lawfully decide,”
the court explained that internationa l law may also impose such con-
stra ints:
We would also note that in some ad ministrative de cision mak-
ing contexts, inter national law wi ll operate as an impor tant con-
straint on an adm inistrative dec ision maker. It is well establ ished
that legislat ion is presumed to operate in conformity with C anada’s
internationa l obligations, and the legisl ature is “presumed to comply
with . . . the values a nd principles of custom ary and conventiona l
internationa l law”. . . . Since Baker, it has also been clear that i nter-
national treatie s and conventions, even where they have not bee n
implemented domestical ly by statute, can help to in form whether a
decision was a reason able exercise of administr ative power. . . .
e explanation g iven here of why international law is sometimes an
important constraint on adm inistrative decision ma kers is the pre-
sumption of conformity with international law and the related notion
that Canada’s international obligations are part of the legal context i n
which Canadi an legislation is enacted and read.
is reliance on the presumption of conform ity, with its depiction
of Canadian law within an international context and its strong pref-
erence for internationally compliant inter pretations of domestic law,
suggests that an adm inistrative decision w ill not be susceptible to re-
view merely for disregarding some relev ant international obligation. A
decision maker might ig nore the obligation but still reach a resu lt that
Ibid at para .
Ibid at para .
Ibid at para . See a lso Mason v Canada (Citizens hip and Immigration), SCC
[Mason] at para .
Using International Law in Canadian Courts
400
conforms with it. Where, however, the decision under rev iew is con-
trary to or inconsistent wit h an international obligation of the state,
that decision wil l likely be unreasonable for that reason. Put another
way, the presumption that Canadian laws conform to Canada’s inter-
national obligations means t hat an administrative decision ma ker can-
not reasonably interpret a domestic provision inconsistently with the
state’s obligat ions.
In Mason v Canada, Jamal J for the majorit y of the Supreme Court
of Canada noted that the presumption of conformit y with internation-
al law “assumes additional force” in judicial review when interpreti ng
a law that makes its presumed intent to conform to the state’s inter-
national obligations ex plicit on the face of the enactment. e legisla-
tion at issue in Mason was the Immi gration and Refugee Protection Act
(I RPA ), provisions of which ex pressly identify the Act ’s objectives as
full lment of Canada’s international refugee l aw obligations and com-
pliance with inter national human rights instr uments to which Canada
is signatory. While the “interpretative va lue of international law is es-
pecially relev ant where a statute is explicitly enacted for the purpose
of implementing i nternational obligation s,” it remains true that Vavi-
lov founds the relevance of international law in administrative deci-
sion making not on an internat ional norm’s implementation status but
instead on the presumption that enactments comply wit h the state’s
international obligations – a presumption that applies equally to im-
plemented and unimplemented treaties – and the holding in Baker
that treaties can inform the reasonableness of an exercise of power
even where they have not been implemented domestically by stat ute.
“In other words, in a ccordance with the presu mption of compliance with i nter-
national law, the d ecision maker can not reasonably interpret a Ca nadian provi-
sion in a manner t hat is incompatible with t he obligations imposed on Ca nada
by international law”: Elve v Canada (Citizenship and Immigration), FC
[Elve] at para .
Mason, above note at para .
SC c .
Minister of Public Safety and Emerge ncy Preparedness v Verbanov, FC ,
Grammond J at para .
See the discussion i n Chapter , Section .(b).
Even before Vavilo v, an unimplemented t reaty could “help in form the context-
ual approach to s tatutory interpretat ion and judicial rev iew”: Bhajan v Bhajan,
ONCA at para ; Ontario (Children’s Law yer) v Ontario (Information and
Privacy Commissioner), ONCA at p aras –.
